Why would Israel launch another attack right now? It revolves around the political life (& death) of PM Netanyahu.
In short form- he failed to prevent a US-Iran rapprochement on nuclear weapons which remains hostile but clear of war; he appeared as the obvious culprit that dashed Secretary John Kerry's renewed and fervent efforts to renew the peace process; Palestinian national reconciliation took place under his watch and was accepted by both the US and the EU; and domestically he failed to prevent the precedency of Reuven Rivlin in his parliament.
His own power is severely cracking, and is in 2012 and before, Netanyahu took to beating down on Palestinians and drumming up violent public hysteria to draw attention away from his own failures as well as to flex his militant brass.
This is all repulsive and draped in the obfuscating language of national security. It is likely only the beginning since the bodies of the settler boys have not even been buried and laid to rest.
Bodies of Missing Settlers Found in West Bank, Al Jazeera
Israel's West Bank Operation: Causes & Consequences, Mouin Rabbani
Israelis demand blood after youths' bodies found, Ali Abunimah
Israeli forces 'prepare to demolish homes of kidnapping suspects', Ma'an News Agency
Israel Names Hamas' Marwan Qawasmeh and Amer Abu Aisha as Suspects in Kidnapped Teens Search, Gianluca MezzofioreThe Moral Economy of Settler Colonialism: Israel and the “Evacuation Trauma”, Nicola Peruguini
Getting the Question RightIn recent months the role of international law and human rights has come under increasing scrutiny. This introspection has involved, among other things, questioning whether Palestinians should continue to bring their claims to Israeli civil and military courts; whether occupation law is a part of the problem or part of the solution; and, if legal claims are to be brought before international tribunals, what should they allege?
What these conversations have in common is an assumption that law can serve a positive function. However, in other conversations, discussants ask whether or not the law itself is the problem. It is important to consider the merits and implications of each approach to elucidate the proper role of international law and human rights in the Palestinian struggle for liberation. This policy brief attempts to do just that. It asserts that while the law is generally a tool of the powerful, it can be used to counter hegemony if it is deployed strategically in furtherance of a broader political project.
The question is not whether the law is good or bad. International law and human rights do not exist in an apolitical vacuum, as if they are tablets sitting on a shelf, with known and absolute values, waiting to be invoked and applied. To the contrary, the law can cut in multiple directions depending on the movements with which it is associated, the manner in which it is deployed, and by whom. The fact that aggressor states often use the law to justify their behavior is a case in point. The value, and potential benefit of international law, is wholly contingent on the broader political framework that gives it meaning. A political framework that challenges the balance of power is necessary to avoid descending into the illusion of progress based on the approximation of rights without substance.
International law, human rights, and their associated discourse are not a panacea for Palestinian self-determination; they are merely tools to be used in tandem with a robust set of other tools. Without the national organizing structures and representational bodies able to create a political vision and strategy for Palestinian self-determination, international law and human rights can be confused for the political framework itself. Of course, Palestine is a human rights issue, but it is foremost a national liberation struggle. Self-determination is itself a human right, and theoretically Palestinian demands and grievances can be refracted through a discourse of law. That, however, assumes a virtue that the law does not embody. Law and justice do not go hand-in-hand, and law usually serves the status quo or those in power. This necessitates a complementary approach that includes using the law when justice can be served and political avenues when the law itself entrenches unjust outcomes.
Dependence on international law and human rights without a clear political framework also risks setting up a discourse of “competing rights” in which the rights of the Palestinians “compete” with those of Jewish-Israelis, or even those of Jewish persons writ large. A political framework diminishes this risk by ascribing value to the law and using it to help advance a political movement that addresses the future of Jewish-Israelis as well. The answer, therefore, is a political program that leverages the law, not a legal strategy that defines politics.
This essay does not attempt to provide such a political framework; rather, it explores the question of law and politics with an eye on the Palestinian question. It attempts to problematize the debate and invites further research on the various issues raised. This essay begins by laying out a few of the basic theoretical controversies associated with international law and legal strategies. It then examines the robust critique that Palestinian scholars have leveraged against the law. The final section considers the benefits of using legal discourse and strategies and how those benefits can be fully realized.
I Got 99 Problems and the Law is OneThe issue of the utility of law in relation to social justice movements is not unique to the question of Palestine. Below is a summary a few of the more theoretical controversies about international law, legal strategies, and human rights.
1) Western powers created international law in a colonial context to regulate their intrastate relations as well as to reinforce their domination and exploitation of natural resources within their colonial holdings. As such, any invocation of international law entrenches this asymmetric relationship that structurally disadvantages post-colonial nations and impedes their economic and political self-determination at the global level. Even the surge of newly independent states within the United Nations did not remedy this structural condition as the sole enforcement authority of international law remains within the UN Security Council. This has also severely limited the efficacy of law, especially humanitarian and human rights law, as veto-wielding powers and their allies have been able to stymie attempts aimed at holding powerful nations to account within the Security Council as well as the International Criminal Court.
2) Legal remedies are inherently limited because they seek to reform rather than to revolutionize. As such, a rights-based solution guarantees a non-revolutionary outcome that tolerates the structural inequalities that gave rise to conflict in the first place. Moreover, striving for piecemeal legislative reforms threatens to transform a collective struggle into an individualized one. When persons or groups can demand remedial measures within the bounds of the law, the enforcement of these legal outcomes depends on existing security arrangements. Thus, the state’s monopoly over violence is never adequately challenged, and individual grievances supplant those of society in ways that absolve the state.
3) The law, and particularly human rights law, preaches universalism, depoliticizes conflict, and supplants it with a framework of “competing rights.” Political claims and historical grievances are erased for the sake of achieving equality vis-à-vis the state’s administrative bodies. Such an achievement, however, does not prescribe whether privileged groups should relinquish their privileges and/or whether and how historically disadvantaged groups should be redressed for the wrongs that they have suffered.
In the case of post-apartheid South Africa and post-Civil Rights Act United States, the achievement of human rights amounted to the removal of obstacles for blacks without implementing re-distributive policies and rehabilitative measures such as reparations aimed at creating a more just society. Moreover, the wealth and privilege of whites, built upon, and facilitated by, slave and indentured labor, remained intact, as doing otherwise would have violated the human rights of the white populations under existing applications of the law. Thus, the triumph of human rights does not necessarily lead to justice.
Palestine and Empty PromisesIn light of these controversies what then do Palestinians have to gain from international law and human rights? Several esteemed scholars and writers have insisted that there is in fact nothing to gain and much to lose by insisting upon a legal framework that depends on the structure of international law. In her lecture, “In the Land of the International: Palestine, Revolution and War,” Samera Esmeir scrutinizes how the Palestine Liberation Organization’s (PLO) turn to diplomacy and international law in the early seventies transformed an anti-colonialist movement into a bid for statehood. She argues that this has created a tremendous disconnect between the magnitude of Palestine in the international arena relative to the actual condition of Palestine and Palestinians on the ground. This disparity skews the scope of the conflict and diminishes the urgency required to achieve Palestinian liberation. In their article, “Against the Law,” Mezna Qato and Kareem Rabie critique the reliance on international law and on a rights-based approach in particular. They insist that such an approach fails to build a robust anti-colonial solidarity movement that does not merely demand the rerouting of the separation wall, for example, but calls for its removal all together.
From a different perspective, in “The Limits of International Law Legalese,” Lama Abu-Odeh cautions that the law encourages advocates to make maximalist arguments, which an arbiter then reconciles by “splitting the difference.” The result is a slightly better outcome for Palestinians but one that remains vastly distant from actual justice. Similarly, in his contribution to the Jadaliyya roundtable, Occupation Law: Part of the Solution or the Conflict?, Nimer Sultany enumerates the law’s inability to approximate justice in any context. In particular regard to Palestinians, the law treats Israeli violations as behavioral aberrations rather than as fundamentally constitutive of Israel’s character. This framework is exacerbated by the fact that Palestinian claims under international law are inescapably compartmentalized and therefore incapable of representing a unified claim against Israeli settler-colonialism.
In these examples, the authors make two related claims: one is that legal strategies are insufficient to lead Palestinians to emancipation, and the other is that a rights-based approach downplays or completely erases a legacy of ongoing settler-colonialism. Together, the strategic approach and the legal discourse normalize Israel and, in their most radical form, merely seek the state’s reformation. And what is the value of legal reform within Israel if the premise upon which it is based is not challenged? This is especially dangerous if the Palestinian question is disaggregated into several non-contiguous parts. For instance, what if Israel affords its Palestinian citizens greater access in employment, better education, health care, integration into the military – an already creeping trend – at the expense of recognizing its indigenous minority’s national claims? What if the right of return is recognized but Israel insists on facilitating return, compensation, rehabilitation, and integration into society in ways that preserve the privileges it affords to its Jewish citizens by concentrating Palestinians into ghettos?
The law itself does not sufficiently address these issues, which are political matters more closely associated with the process of decolonization. Decolonization does not necessitate the removal of the settler, as demonstrated by various historical models. It does, at the very least, require acknowledging a history of colonial dispossession and committing to building a society that affirms the centrality of an indigenous population to that society. What that means and what that should look like is beyond the scope of this brief, but the point here is two-fold: one, to demonstrate that the law itself is not the problem, and two, to suggest that national organizing structures, formal or informal, can offer the political framework needed to employ the law in service of Palestinian self-determination. With or without a political framework, international law and human rights are tools, much like media, solidarity delegations, sister city projects, or grassroots demonstrations. Without a political framework, they can be used as tools to highlight Israeli violations, to enable the Palestinian leadership to resist political capitulation, or to resist the dictates of military, diplomatic, and economic power. However, within a political framework, these tactical gains can be used to advance a vision for decolonization.
Critics caution that, as it is being used today, the law articulates the meaning of justice on behalf of Palestinians thereby usurping Palestinians’ political and collective voice. However, while a valid point, this does not capture the enormity of the present-day crisis. At present the language of international law and human rights occupies a disproportionately large space in the discourse on Palestine precisely because no representative Palestinian national body is articulating and representing the will of the Palestinian people. While Palestinians can generally agree on the basic points of unity that define their struggle, the absence of a clear vision for self-determination that offers a blueprint for decolonization has undermined the complementarity between the law and political movements.
Although there have been several attempts to reconstitute a national body with the representational mandate to lead the process of decolonization – incrementally, as in the Palestine Youth Movement and the US Palestinian Community Network, and more comprehensively, in the effort to elect a new Palestinian National Council – none of these attempts have adequately developed. To date, and since the collapse of a legitimate PLO, the Palestinian Boycott, Divestment, and Sanctions National Committee (BNC) represents the largest swath of Palestinian civil society that includes organizations, individuals, and political parties; it remains the most well placed to call for solidarity on behalf of Palestinians. To adequately represent the interests of a holistic Palestinian national body without supplanting the PLO, the BNC has chosen to explicitly sidestep questions about the appropriate political solution to the Palestinian question and to focus on rights instead. In doing so, it has been sustainable, and it has engendered a decentralized movement that has been less vulnerable to penetration and sabotage. In addition to rehabilitating the singularity of a Palestinian national body, it has emphasized that Palestinian human rights should be upheld regardless of the political solution.
The BNC and its rights-based call for solidarity does not preclude the potential role of other national formations emerging from refugee camps, the West Bank, the Gaza Strip, from within Israel, or beyond. To the contrary, an alternative political structure, with the mandate to lead, is absolutely necessary to transcend the impasse facing Palestinians who will not enjoy freedom riding on the coattails of amorphous legal entitlements. International law and human rights cannot supplant the political demands of a national liberation movement, but they can help advance its goals.
Locating the Law’s PotentialDespite the concerns discussed above, the categorical rejection of a legal strategy and/or a rights-based approach runs the risk of losing key opportunities to recalibrate the balance of power. Especially in the politics entrenched by the Oslo Accords and its attendant “peace process,” law has emerged as a potential counterweight to the devastating dictates of naked power.
This happens in three main ways: First, by challenging the political position of an unrepresentative Palestinian leadership, which has dispensed with a resistance strategy in order to benefit from the elusive promises of US-defined pragmatism. Second, by using the substance of the law to expose Israel’s manipulation of it in order to provide a veneer of rule-of-law legitimacy. And third, by challenging the legitimacy of Israel’s unjust order as a whole and not just within the Occupied Palestinian Territory (OPT). This section will consider the ways that law can be used, and, in some instances, has already been used, to challenge the balance of power between Israel and the Palestinian people.
1. Offsetting the detrimental impact of an unrepresentative Palestinian leadershipThe PLO/Palestinian Authority (PA) has relinquished international law claims for the sake of illusory enhanced negotiation positions. Accordingly, it has asked other states to express support for Palestinian freedom by providing diplomatic and financial backing to the peace process regardless of its impact. In this context, for instance, the PLO/PA seems willing to accept settlements as a new reality and to “swap” lands with Israel rather than demand their removal all together. More importantly, accepting settlements misses the opportunity to confront Israel’s settler-colonial logic, which has entailed the ongoing forced population transfer of Palestinians. Settlements are not merely physical obstructions, and such pragmatism cannot circumvent Israel’s expansionist and supremacist project. This is not simply a legal matter; it is a moral issue that goes right to the heart of the inherent dignity and fundamental rights of the Palestinian people.
Nonetheless, the language of law and its associated mechanisms have empowered civil society actors to intervene in a process that is otherwise dominated by state and quasi-state actors. Repeated references to the Fourth Geneva Conventions, and specifically the war crime of settling a state’s civilian population in the territory it occupies, has enabled challenges to Israel’s settlement expansion by asking states to defer to Palestinian demands based on international law as opposed to a co-opted Palestinian leadership. Moreover, insisting that the swaps themselves amount to war crimes reinforces these claims and highlights the history and settler-colonial logic that the Palestinian leadership seems so ready to forego.
2. Exposing the veneer of rule of law legitimacyIsrael bases all of its actions in law, because the globalized system in which states exist reveres the rule of law. For example, the wholesale destruction of Gaza is done in the name of self-defense. In another example, Israel denies families housing permits, thereafter declares the homes illegal, and then bulldozes them. The Jewish National Fund, for instance, is considered a non-state entity and can therefore legally discriminate against non-Jews. Its representatives deliberately constitute nearly half of the Israel Land Authority, which administers state land to facilitate racially discriminatory urban and state planning that privileges Jewish Israelis. In another case, the Israeli military declares particular roads in the Jordan Valley closed military zones and then fines Palestinians for crossing them – even though these roads separate Palestinians from their lands, schools, and families thus leading to the disintegration of their communities and/or their forced displacement. Israel employs the law at every juncture in its quest for legitimacy as a democracy based on the rule of law.
Yet, although what is legal is not necessarily legitimate, Israel explicitly uses legality to provide a veneer for legitimacy. Part of the Palestinian struggle for liberation involves removing that veneer and exposing Israel’s blatantly violent and discriminatory nature. Using the substance of law (e.g. the Convention on the Suppression and Punishment of the Crime Against Apartheid, Forced Population Transfer as a war crime, International Covenant on the Elimination of All Forms of Racial Discrimination) is a useful tool to challenge Israel’s manipulation of law.
3. Challenging the legitimacy of Israel’s settler-colonial project and apartheid regimeIn an earlier era, where several state and non-state actors struggled to define legitimate and illegitimate violence in the context of several decolonization movements, the Palestinian struggle had greater moral salience. In a world dominated by the U.S., the Palestinian struggle has been subsumed by a discourse of terrorism and counter-terrorism and has obscured the morality of the Palestinian question. Human rights discourse, together with growing mass popular movements, has steadily exposed the bankruptcy of this security framework and helped to reframe the Palestinian question as an indigenous struggle against colonial domination in the global north. What, for example, does Israel stand to gain in terms of its security by the Judaization of East Jerusalem? How does planting a forest atop the homes of 70,000 Palestinian Bedouin citizens enhance its qualitative military edge? How does the application of two sets of laws for two sets of people distinguished only by religion and nationality increase the safety of anyone between the Mediterranean Sea and the Jordan River?
In asking these questions and steering Palestine away from a discourse of security to one about humanity and rights, human rights and international law are serving their most significant function: putting the legitimacy of Israel’s settler-colonial and apartheid regime into question. There is a reason that Howard Kohr, chief executive officer of the American Israel Public Affairs Committee (AIPAC), describes BDS as the second most significant threat to Israel after a nuclear-capable Iran. It is not because the movement threatens to bankrupt Israel, but because it can isolate it and make it, in the words of Justice Minister Tzipi Livni, “a lone settlement in the world.” This is what Richard Falk, outgoing UN special rapporteur to the OPT, describes as a “war of legitimacy.” This war moves the confrontation over the legitimacy of Israel’s dispossession, displacement, and exclusion of Palestinians, for whatever political purpose, to a global battlefield.
The utilization of a human rights discourse has helped to highlight Israel’s most blatant contradictions. For example, Israel touts itself as the only democracy in the Middle East and yet considers equality for its non-Jewish citizens as tantamount to its destruction. Similarly, its identity is constructed as a state for refugees, yet Israel forces the ongoing exclusion of a refugee population that it created and a dispossession project it continues.
These arguments can be made rhetorically without the weight of law and rights. However, their invocation as universal principles demonstrates that Israel is indeed being singled out: it enjoys the status of equality with all other states when in fact it acts above the law. Using a universal framework demonstrates the illegitimacy as well as the exceptional and abnormal nature of Israel’s settler-colonial and apartheid regime. And yet, the lack of a political framework aimed at decolonization risks empowering the law to stand in for Palestinian demands rather than simply serving as a tool to advance them. Complementarity, in this instance, demands the establishment of a political program that is able to use the law to its best effect.
The main challenge facing Palestinians today is not the abundance of law and legalese but the absence of organizing structures and representative bodies able to create the political vision, strategies, and leadership necessary to advance the aspirations of all Palestinians. What is needed is a compelling framework for complementarity: developing a political program and a leadership that is representative of Palestinians as a people can imbue the law with particular meaning and allow it to serve its proper role in advancing the movement. Until then, political activists and legal advocates alike should strategically use international law and human rights in order to expose Israel’s racist and oppressive nature. While it may be tempting to target the law as the cause of dysfunction, Palestinians should refrain from doing so. The law and its associated strategies are rife with problems, but they are not the source of them.
In mid-December 2010, a young street vendor set himself on fire after his ill-treatment by Tunisian police. Mohamed Bouazizi set himself ablaze in Sidi Bouzid and inspired an entire region to revolt against decades of authoritarianism. Mass protests in Tunisia led to the ouster of its autocratic head of state Zine Abidine Ben Ali. This revolutionary fervor then spread to neighboring Egypt, where eighteen days of protest removed Hosni Mubarak from the helm of power. Soon, these tectonic shifts inspired protestors in Yemen, Libya, Bahrain, and Syria to challenge their autocratic leaders who had, for decades on end, also denied them the right to freely determine their political, economic, and social conditions. The protests have since successfully led to the negotiated removal of Yemen's Ali Abdullah Saleh from power. NATO military intervention, initially mandated by the UN Security Council to thwart a massacre in Benghazi expanded into a mission of regime change and ended the rule of Muammar Qaddafi in Libya. Today, protests continue in Syria, Bahrain and the transition processes have never ceased in Egypt, Libya, Tunisia, and Yemen.
The emergence of authoritarian regimes in the Arab world reflects a sordid history of colonial rule and post-colonial interventions that have created oppositional politics among states within the Middle East. The Middle East is rich in natural resources like gas and oil and has been one of the most penetrated regions by foreign interests. French and British intervention after the First World War derailed regional aspirations for unity and arbitrarily carved the Arab populations into several states. Each of these states later became independent from colonial rule and, ultimately, they became authoritarian.
Though devoid of political ideology, Arab regimes cultivated popular legitimacy by combining authoritarianism with a redistributive welfare state, in what political scientists refer to as “authoritarian populism.” Accordingly, states successfully “consolidated power by trading development for the political loyalty of key social forces, such as workers, peasants, and professionals, and others educated in the middle class.” Despite significant opposition, most Arab populations welcomed this social contract: in exchange for political and civil rights, the regimes would provide economic stability in the form of basic goods like subsidized housing and food as well as security to live free of internecine violence.
This contract, however, quickly began to unravel. GDP growth rates generally rose with the beginning of populist policies and public sector expansion only to begin falling in the 1980s as a result of a combination of repression, corruption, and mismanagement. The contribution of human and physical capital dropped from 3.4% in the sixties to negative 1.5% in the 1980s and stagnated throughout the 1990s. As Arab authoritarian regimes have entered into the globalized economy through the neoliberal prescriptions window, they began to privatize public goods like water, electricity, housing, and education through Public-Private Partnerships (PPPs). By steadily retracting redistributive policies whilst maintaining authoritarian governance, Arab authoritarian populists breached their tenuous social contracts.
By the 2000s, and as the gap between rich and poor expanded and as gender and other social-based disparities deepened within Arab countries, their aggregate economic figures oddly improved, but at the dire expense of equitable distribution. The IMF, for example, in 2010 praised Tunisia’s “‘sound policies and reforms’ for helping the country weather the global downturn.” The inverse relationship between aggregate and socio-economic development is not unique to the Arab world. In fact its ubiquitous nature among developing states, especially, reflects the principles first captured in the 1986 UN Declaration of the Right to Development and later reaffirmed in the 1993 Vienna World Conference on Human Rights. The missing ingredient was distributive equity.
Development as a Human Right
Drafters of the UN Declaration of the Right to Development were careful not to reduce development to purely economic aspirations. Instead, the document reflects a textured understanding of human and national development, which it defines as
“a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom [...]”.
The Declaration affirms the interdependence of development, democracy, and human rights. It suggests that in order to benefit from development, human persons must be free from structural abuse, so as to freely participate in their cultural, economic, social, and political development.
In practice, centering human persons in national development means, ensuring active and meaningful participation; securing non-discrimination; fairly distributing the benefits of development; respecting self-determination and sovereignty over natural resources; and allowing human development to inform all processes that advance other civil, political economic, social and cultural rights.
In 1993, the Vienna Declaration reaffirmed development as a human right (para. 10) as well as the interconnectedness of development, democracy, and human rights. Like the UN Declaration of the Right to Development, the Vienna Declaration is clear that human persons, not national economies are central subjects of development. Paragraph 10 reads, "while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgment of internationally recognized human rights," thus capturing the tension between state and individual rights and prioritizing the latter.
The Vienna Declaration emphasizes that democratization in this context “is based on the freely expressed will of the people to determine their own political, economic, social, and cultural systems and their full participation in all aspects of their lives." (para. 8) In marked contrast, neoliberal prescriptions define democratization in pursuit of development as opening up the market without regard to human rights or agency. Its overreliance on trickle-down effects casts the state as an obtrusion to prosperity. Worse, policymakers who aimed to dismantle state regulation and control of natural resources took for granted how neoliberal prescriptions globally overlapped with the interests of local and political elite. The effect was a redistribution of state wealth and opportunities to new a new elite class of public and private actors without regard for equitable distribution of opportunities and resources. “Democratization” and “participation” therefore remained exclusionary in content and structure.
Since the 1990s, international financial institutions (IFI’s) have strategically linked the function of markets with their international governance. It is in this context that the
“World Bank and other institutions have emphasized notions such as the ‘rule of law,’ ‘decentralization,’ ‘good governance,’ ‘separation of the legislative and executive,’ and so forth, which supposedly aim at reducing the rent-seeking capabilities of state officials, and guarantee greater transparency in economic affairs.” (127).
This developmental program in the Middle East, characterized by autocratic governance and marked by economic stagnation, has been intensely undemocratic and brutally indifferent to the dignity of individual persons and their collective formations.
Neo-liberal Development, Human Rights, and the Arab Uprisings
Rather than consider the state’s failure to empower, include, and provide, adherents of neoliberal development framed the Arab Uprisings as a revolt against government bureaucracy and rent-seeking. While there may be truth in that, by de-linking the gains of national economic and political elite from an international neoliberal development project, stakeholder states and IFI’s mistakenly exculpate themselves.
Fittingly, Robert Zoellick, President of the World Bank, attributed Bouazizi’s self-immolation to his frustration with “red tape.” Zoellick advised that Arab states should “quit harassing people and let them have a chance to start some small businesses.” (128) However, at the time of its Uprising, Egypt ranked as the eightieth easiest state in which to start a small business. Either the irony or the dispositive evidence was missed on Zoellick. Myopic focus on institutional governance fails to scrutinize the privileged access to economic opportunities in developing states that thwarts development, democracy, and human rights.
Over the course of three decades of authoritarian rule, the Mubarak regime, comprised of Mubarak himself together with its incumbent economic and political elite, amassed a tremendous amount of the country’s wealth for their personal benefit. The state has acquired thirty-five billion USD in loans, eighty-five percent of which is publicly guaranteed, and none of which benefits the general population. In the course of repaying its loans, more loans flow from Egypt to the West than the other way around. Since the ouster of Mubarak, no attention has been given to remedying this condition. To the contrary, from the democratically elected Muslim Brotherhood and now, within the military regime that has ousted it, these neoliberal policies have become further entrenched. States and IFI’s pledged 15 billion USD to post-Mubarak Egypt within three months of his ouster. However, according to Professor Adam Hanieh of SOAS University,
“This investment…is premised upon a profound liberalization of the Egyptian economy. They will only be undertaken concomitant with measures such as a deepening privatization (undoubtedly in the form of PPPs), deregulation (initially likely to be connected to the opening up of more sectors to foreign investment), the reduction of trade barriers (connected to access to US and European markets), and the expansion of the informal sector (under the banner of cutting ‘red tape’). They will necessarily involve, furthermore, a rapid expansion in Egypt’s overall indebtedness – tying the country ever more firmly to future structural adjustment packages.” (134)
Although its protests did not develop into sustained mass mobilization, in Jordan, the demand for human-centered development reverberated clearly. While Jordan’s economy ranks thirty-eighth freest in the world and the fourth freest in the Middle East, the majority of its citizens are poor and have weak purchasing power. Its most economically vulnerable population constitute the working poor and do not benefit from these trade privileges. The exclusive concern with growth rates is misplaced in Jordan where trickle-down effects have been dispositive and only a select economic and political elite has access to profitable investment arrangements.
Syria stands out as the exception among its Arab neighbors only for resisting a similar developmental shift until the late 1980s. In 1986, the Syrian regime shifted its social and political alliances from labor to business. In a context of economic stagnation, this shift also marked a slow but gradual reduction in state subsidies for basic goods upon which a significant cross-section of the Syrian population was reliant. By the 2000s, combined with the deleterious effect of policies driven by a new business class with ties to the government, this resulted in greater absolute poverty and social polarization as well as a dramatic increase of the informal sector. According to Professor Bassam Haddad, Director of the Middle East Studies Program at George Mason University,
“the most lucrative new economic opportunities were monopolized by regime loyalists, relatives, or partners…The striking proximity of policy makers to policy takers made rent-seeking and structural corruption extremely efficient, producing a plethora of tailored policies that weakened, fragmented, and taxed the national economy.”
All the while, the Syrian Regime steered this shift in the name of ‘investment,’ ‘growth,’ and ‘modernity.’ Together with the most severe drought that has caused the forced internal migration of more than 1.2 million Syrians since 2003, social polarization and discontent reached extraordinary levels by the late 2000s, tipping the balance in favor of a mass-based Uprising in rural areas. While this may explain the origins of the conflict, it hardly explains how the Uprising has turned into internal conflict and a regional proxy war, which I will not discuss here.
I do not mean to suggest that failure to adhere to the interdependent development approach has caused mass mobilization across the Arab world; that would be rather simplistic. The anecdotal case studies above do, however, illustrate the gravity and enduring relevance of human-centered development. They also show how other states and international institutions are implicated in national struggles. Both lessons are instructive for practitioners, organizations, and analysts concerned with development, democracy, and human rights in the Arab world.
On a national level, states must be able to subvert international economic prerogatives that conflict with their own national goals. By limiting democratization to unfettered markets, IFIs impede the ability of governments to freely determine the use and distribution of their own resources. Worse, they provide incentives for political-business elite networks to benefit from these exclusive arrangements while publicly-backing loans that avoid personal risk. The overlap of local interests and global neoliberal prescriptions has economic and political elite to benefit tremendously even as they professed a commitment to nationalist ideals. (i.e., Syria continued to boast its socialist constitution until 2005 while adopting state/crony capitalism in the best form.) Uncritical approaches to national sovereignty, self-determination, democratization, and participation that are not linked to equitable distribution fail to account for this deleterious pitfall. Equitable distribution must be part and parcel of any developmental formula in countries where inequity has become a recipe for either authoritarianism or chronic instability. Such reform must be internalized within national development agendas as well as within the IFIs themselves, which facilitate these hazardous arrangements.
Above all, the case studies are a stern reminder of the inextricability of civil, political, and social, economic rights. It is much easier and much simpler to attribute the upheaval in the Arab world to a lack of democratic governance, free and fair elections, an independent judiciary, and police accountability. However, it would be short-sighted to extricate these coercive measures from an international economic system that precludes democratic participation with equity and is contingent upon a truncated state. Under these terms, development must occur in spite of popular will rather than on its behalf. It is telling that after Ben Ali’s ouster from Tunisia, Tunisians opted to loot luxury villas, shops, and supermarkets identified as belonging to the family rather than attack police stations. Human rights practitioners and organizations should bear in mind that expansion of political and civil participation for individuals within government must be interlinked with more meaningful economic self-determination.
These prescriptions are not new. The UN Convention on the Right to Development captured them twenty-three years ago, the Vienna Convention on Human Rights reaffirmed them three years later. Self-determination of individuals, collectivities, and states cannot be overestimated in alleviating these conditions and making central the person and society, not just the person himself. Human rights advocacy should take its cue from those local and regional movements that are viscerally and daily affirming this principle.
This post originally appeared on IntLawGrrls in two Parts: Part I & Part II.
The death toll in Syria has exceeded 100,000. The refugee population approaches two million, including one million Syrian children and excluding the Palestinian refugee population which is enduring secondary forced displacement as a result of the Syrian conflict. The horrors of the conflict which began two and a half years ago, reached new heights amid reports of a chemical weapons attack that killed 1,000 civilians in Ghouta on 21 August 2013. The attack crossed the Obama-declared "red line" and intensified calls for military action against the Syrian regime. Now there are reports that the Obama Administration will indeed strike Syria in the coming days. According to reports, the strike will be swift and discrete. Its purpose seems to be more political, than military, as it is a loaded demonstration of military capability without the specter of a full-on intervention. This is not surprising.
The US Administration understands that the conflict in Syria is also a proxy regional war aimed at shifting the balance of power in the Middle East. There is little possibility that the US can intervene in Syria and not trigger a broader regional conflict that it does not have the capacity to handle and that Syria's neighbors prefer to avoid. Meanwhile, Iraq's ominous shadow is chilling Europe's enthusiasm for another military operation in the Middle East. The UK prefers authorization from the UN Security Council to intervene in Syria. It has put forward a proposal to discuss that in the Security Council tomorrow 30 August 2013. However, that is unlikely to yield any results in light of Chinese and Russian support for the Syrian Regime.
So what does this mean for the Syrian civilians who are enduring a tremendous humanitarian crisis? In the short to medium-term it is quite dismal. Even if the balance of political will and interests were to shift, military intervention will not solve the conflict nor miraculously end the crisis in Syria. To the contrary, the situation could get worse. Consider that in Libya, for example, "between the start of the conflict and the passage of UNSC Resolution 1973, approximately 1-2,000 civilians were killed. By the end of the NATO bombing campaign, 30-50,000 lives had been lost." Moreover, Syria is markedly different than Libya. As I wrote in an IntLawGrrls post last year, intervention in Syria, similar to collective action taken in Libya is inappropriate because:
► Syria, unlike Libya, is not constituted of vast swaths of sparsely populated land. To the contrary, it is densely populated and relatively small.
In their poignant piece, Why There is No Military Solution to the Syrian Conflict, Asli Bali and Aziz Rana explain:
... [T]here is likely no form of direct or indirect military involvement in the conflict that will spare civilians or advance either side towards a decisive victory. In short, there are too many interveners and too many strategic interests at stake for any side to allow too great a tipping of the balance. Some might argue that the ongoing destabilization of Syria serves its own strategic purposes. Aside from the deep moral bankruptcy of such a position, its logic of perpetual conflict threatens to engulf the region with spillover effects radiating beyond the control of potential interveners.
This of course not a call to idly sit back and watch Syria tear itself apart. To the contrary, it only heightens the necessity of a diplomatic solution - as elusive as that may seem. In his insightful essay, Chemical Attacks and Military Intervention, Omar Dahi explains:
A political settlement would be the beginning not end of the struggle. Right now, the struggle is drowned out by a war of annihilation that is also a proxy war by regional countries at the expense of Syrians. There is no doubt that the Syrian regime has waged a war of destruction against its own people with decisive material and political support from Iran and Russia, and that it bears the primary responsibility for the violence. It has not shown a serious inclination for anything other than total victory. However, from the start of the uprising, the Gulf countries immediately saw the opportunity to defeat Iran in Syria and have used their money and arms to highjack the uprising and the language of the revolution in the benefit of a sordid counterrevolutionary agenda. This has led Iran to become more entrenched in its support of Syria, and to increase its support at every turn. The United States and its allies were setting up the possibilities for an endless civil war. The fact that the United States is threatening to strike now has nothing to do with the welfare of Syrians, and everything to do with the United States maintaining its own "credibility," its position as a hegemonic power.
It is most difficult to witness this human catastrophe unfold and do "nothing" about it. But in this case, "something," in the form of military intervention, offers little additional benefit and significant negative unknowns. It is best to build political, legal, and moral pressure for a political solution. Meanwhile, we can also give serious thought to the notion of "preventive" solutions. The policies and regimes that have been propped up by powerful external actors, like the United States, have created these dreadful contradictions where there are no optimal choices for solutions. As Bassam Haddad noted nearly two years ago, enemies of Syria, not just of the Syrian Regime, seek to foster a protracted conflict wherein Syrian resources are ultimately depleted.
Finally, as the venerable Kissinger used to say in the 1980s (I am paraphrasing): let the Iranians and Iraqis kill each other into impotence, for it facilitates things for the United States thereafter. Thus, some would like Syrians to continue killing each other, for a while longer, before an intervention is advanced. They would be happy to see Syria weaken even further its institutions and infrastructure, while social and political divisions are excascerbated enough to undercut possibilities of collective action for a long time to come. Syria’s long-term trajectory after the Ba'ath fall is an unknown, whether one considers questions of resistance, anti-imperialism or the struggle for restoring the Golan. So, from the perspective of those in the "Kissinger camp", why not wait for Syria and Syrians to disempower themselves further, instead of pushing for a swift conclusion now? If one, or a government, supports the safety of the apartheid state of Israel, what else would be better than a protracted killing field in Syria?
For more readings on Syria, I recommend Jadaliyya's Syria Page.
Since the military removal of Mohammad Morsi from office on July 3, the situation in Egypt has rapidly become intensely polarized. The entrenchment of two broad camps - for the military-led take-over or against the coup - obscures the complexity underlying Egypt's dramatic transformation. Millions of Egyptians converged on Tahrir Square in January 2011 to remove the US-backed authoritarian regime of Hosni Mubarak. They demanded a new relationship to the state including a full panoply of economic, social, and political rights. Who can forget the the ringing call for 'Aysh, hurriyya, `adaala ishtama'iyya (Bread, freedom, and social justice)?
This revolutionary vision seems more distant then ever now when the same liberal base who insisted on Mubarak's removal are now supporting the Army and other vestiges of his regime. Rather than tackle the security state, police brutality, and exclusive control of state resources, this base seems to forgive these structural ills in a fight to rid its government, and society, of the Muslim Brotherhood. This is not to be confused with the calls made on, and leading up to, the June 30 mass marches. Then, the indictment against Morsi was squarely his failure to use his Presidency to effectuate the demands of the revolution; failure to prosecute the security apparatus for its murder of 800 civilians during the 2011 Uprisings; its attacks on women and minorities; its hijacking of a Constitutional reform process; and, generally, its consolidation of power in an attempt to maintain Egypt's authoritarian regime but supplant its secularist character with an Islamist one. The "people" rejected these developments and the June 30 protests appeared to be a popular referendum.
But what began as a referendum has seemingly devolved into a battle between secular and Islamist authoritarianism- and more pointedly into a deleterious campaign against the Muslim Brotherhood. The Brotherhood is not only one of the most significant political parties in Egypt, it is constitutive of a broad swath of its society. Any campaign that aims to "remove" it mistakes its social and political character for a malignant cancer. By framing the Brotherhood as a terrorist network with foreign ties, the Army and its supporters have declared war on their own body.
Presumably, the liberal base has thrown its support behind secular authoritarianism, meaning for the Army, the feloul, and all its ills, as a first step towards the real battle against authoritarianism itself. Presumably. In truth it is almost beyond reasonable comprehension. There are no signs that tackling the Egyptian security state is next on the liberal agenda so far. If this is true, then the excuse many of us gave regarding the hijacking of the Tamarod movement by the army becomes less plausible. One wonders, in what fundamental ways will this new regime differ from Mubarak?
To help make sense of recent events, here is a selection of worthwhile articles and commentaries.
DEVELOPMENTS WITHIN EGYPT:
The Revenge of the Police State
Wael Eskandar argues that the greatest threat to Egypt today is the return of the police state.
"More specifically, the threat concerns, not only the reconstitution of a police state, which never really left since Hosni Mubarak’s ouster, but also the return of the implicit, if not overt, acceptance of the repressive practices of the coercive apparatus. In this respect, the current face-off between the state and the Muslim Brotherhood holds very damaging potential. Widespread anti- Muslim Brotherhood sentiment is currently providing the state with legitimacy to use of force against the Brotherhood, and, in the future, a potential cover for using similar tactics against other dissidents as well."
Statement from the Egyptian Revolutionary Socialists on the Massacre in Cairo
The Revolutionary Socialists issue a statement in response to the August 14th massacre that left 630 civilians dead. The massacre was the direct consequence of the Army's attempt to break up a sit- in demanding the release of ousted President Mohammed Morsi from custody. Their stance aptly breaks through the polarization that otherwise grips Egyptian society and politics right now.
US questions Egypt prisoner deaths, Mubarak may be freed
Egyptian forces killed 36 detained Islamists by suffocating them with tear gas during an alleged attempt to flee custody. In response, Islamist militants attacked police barracks in the Sinai and killed 25 Egyptian policemen. On the same day, judicial authorities announced that deposed dictator Hosni Mubarak, would be released from prison by the end of the week.
It only gets worse from here
Egyptian liberals were wrong to believe that they could oversee political transformation under the Army's guardianship. The assumption that the Army would preserve stability while progressive forces continued with the transformative change is an illusion. Moving forward, the Army is not trying to prevent violence, but to stoke it amongst the Muslim Brotherhood. A violent confrontation enables the Army to set upon a protracted battle against the Muslim Brotherhood that it desires.
Everything Was Possible
Omar Robert Hamilton eloquently describes the struggle of Egyptians who have supported the revolution and sacrificed their lives and livelihood for it who are now bearing witness to unfolding events with horror. He insists the "revolution is not dead until we are no longer willing to die for it."
How Resource Shortages Sparked Egypt's Months-Long Crisis
The crisis in Egypt is one about resource scarcity and that seems to have faded in the shadow in a battle between secularists and Islamists.
"With some 40 percent of the population living on $2 a day or less, and rates of illiteracy and unemployment hovering around a third of the population, it was only a matter of time before economic grievances translated into political outrage. The trigger factor, though, was food--on which a quarter of Egyptians spend more than half their incomes."
Excluding the Exclusionary: Does the Muslim Brotherhood Have a Say in its Future?
The Muslim Brotherhood's legacy within Egypt helps to explain the reactionary response to its year in power and its protest against their military-backed removal.
"The group continues to represent its discourse as synonymous with Islam and as such distance themselves from any other political movement or trend. Indeed, the Brothers continue to portray their political struggle not as competition for political power but as martyrdom in the path of God. This is not new."
Egypt, the 'war on terrorism' and Islamophobia
The Egyptian Army has framed the Muslim Brotherhood as a bandit as terrorists in order to neutralize their political claims and to legitimate its brutal attack against them.
"The utilisation of Islamophobic and "war on terror" tropes in Egypt are reflective of the global post-colonial epistemological trend that problematise Islam, as a religion, and Muslims, when seeking political agency grounded in a living tradition in the "modern" nation-state. What started as a coup against an elected president was successfully trans-configured by the military and the elite into a "war on terror" against a sub-human group that no longer belongs to the Egyptian body politic."
From Revolution to War on Terror: Reflections on Post-3 July Egypt
An iteration of fundamental points and principles: The Muslim Brotherhood is rooted in politics, not divine aspirations; the military forces are not revolutionary; the war on terror is a discourse and exercise in power regardless of who is deploying it.
On Egypt's Day of Infamy
Editors and Contributors to the Middle East Research and Information Project (MERIP) respond to the massacre on August 14, 2003 in roundtable form.
"August 14, 2013 was a day whose events and meaning Egyptians will be debating fiercely for decades to come. Following that day’s bloodshed, Egypt is in the middle of its most severe crisis since the fall of ex-president Husni Mubarak in February 2011. The fate of the country -- popular sovereignty or no -- likely hangs in the balance. We asked several veteran observers, all of them Middle East Report editors or authors, to offer their views of how Egypt got to this point and what the future holds."
ON MEDIA AND DISCOURSE:
Discourse Polarization and the Liberal Triumph in Egypt
Jadaliyya co-founder Bassam Haddad breaks down polarization of the discourse in Egypt and attributes it to ill-informed media experts and a failure to grapple with conditions in Egypt. Haddad also addresses the liberal support for Egypt's "war on terror."
Lina Atallah on Media in Egypt
Lina Atallah, the chief editor of Mada Masr, discusses the closing of the Egypt Independent, the discourse on Palestine within Egypt, and Iranian elections.
US FOREIGN POLICY:
Senator: Obama Administration Secretly Suspended Military Aid to Egypt
The office of Sen. Patrick Leahy (D-VT), the head of the appropriations state and foreign-operations subcommittee, told The Daily Beast on Monday that military aid to Egypt has been temporarily cut off.
Here are the top 10 American corporations profiting from Egypt's military
A list of the ten US corporations that profit the most from its relationship to the Egyptian military and its exercises.
Egypt's Rulers Have a New Friend in DC: The Israel Lobby
The Israel Lobby opposes suspending aid to Egypt for fear that it will cause instability and undermine the 1979 peace accord between Israel and the US.
"An AIPAC source speaking with The Cable on the condition of anonymity insisted that aid to Egypt was not a top issue for the lobbying group. But the source noted that AIPAC's support for the aid was not contingent on the way Egypt treats anti-government protesters. "The primary criteria on how we evaluate this issue is if Egypt is adhering to the peace treaty," the source said, referring to the 1979 peace accord that normalized relations between Egypt and Israel. "We realize that the situation is very fluid and that policymakers will have a range of considerations on this matter."
For more readings and incisive analysis, visit Jadaliyya's Egypt Page.
Apparently Black boys cannot be victims in the United States. Or so a South Florida court has coldly told the world. The 6-member jury accepted that Blackness 'reasonably' invokes fear & lethal responses to it. If so, where are Black boys to go to be safe? In the course of the trial, the judge forbade a discussion of Racial Profiling and thus eliminated the opportunity for it to be the trial it needed to be: one that challenges the construction of Blackness as dangerous. I have no illusions about a broken criminal justice system that daily destroys more than it builds, but even it needs to "perform" at times just to legitimate itself. No cover left for its blatant biases - blackness seems to pierce the blindfolds of America's Lady Justice.
As we bear witness to one of the most dramatic junctures in Egypt's history, it is easy to take a stark position, with the revolution or against the coup. As we think about these events, we need to be much more militant (no pun intended) about sparing nuance from our analytical chopping block. Although there is something undeniably troubling about the coup, there seems to a reactionary defense of "electoral democracy" in Egypt that does away with a context wherein:
Having said all that, I do not think that the weeks and months ahead will produce automatic progress. To the contrary, absent the continuing vigilance of Egypt's people power, things can take a dramatic turn for the worse. Although the Egyptian street has not been naive in its planning and approach, it is now open to possibility that the military use this unprecedented popular showing as an instrument to reassert itself.
A LOT has been written about Egypt in the past few days- and that's an understatement. To help you navigate through it here are my suggested readings:
Down With Military Rule...Again?, Hesham Sallam
Sallam unpacks the misleading binary between military coup and democracy as he places current events in Egypt into vivid context.
The Seven Deadly Sins of the Muslim Brotherhood, Khaled Fahmy
Fahmy explains how the Muslim Brotherhood has been its own worst enemy in its twelve-months in power.
Why the Western Media Are Getting Egypt Wrong?, Khaled Shaalan
Shaalan takes on simplistic and overeager media who have reduced current events in Egypt into a battle between the military and Islamists.
Egypt's Democratic Outlaws, Abdullah Al-Arian
Al-Arian inserts at least two new elements into the conversation worth considering: 1) the reaction to the Muslim Brotherhood's missteps are especially harsh precisely because of the Brotherhood's legacy within Egypt; and 2) the ousting of President Morsi has foreclosed, "possibly forever, the opportunity to witness the Muslim Brotherhood humbled through its preferred method of political contestation."
For ongoing developments, I suggest following Jadaliyya’s Egypt Page.
Egypt is experiencing one of its most significant mass movement in recent history. The numeric and geographic magnitude is unprecedented as it surpasses the protests that removed former Egyptian ruler, Hosni Mubarak, from power in February 2011. On 1 July 2013, the military gave the Muslim Brotherhood leadership 48 hours to resign in a televised broadcast. From what could be gathered, protestors celebrated the threat, which if actualized, would amount to a military coup. The Brotherhood has rebuffed the threat, confident that the US supports its ongoing rule. It has also called upon its supporters to protest in support of President Mohammed Morsi and against the potential coup. Below is an excellent compendium of articles published by Jadaliyya's Egypt Team to help put this critical moment in context.
For almost all Egyptians, 30 June 2013 is a day of celebration. Yet, while partisans of the Muslim Brotherhood are celebrating the one-year anniversary of Mohamed Morsi’s presidency, the twenty-two million Egyptians who signed on to the Tamarod Campaign petition--calling for early president election--are celebrating its end.
To shed light on this critical juncture in the living history of the January 25 Revolution, the Egypt Page Editors at Jadaliyya would like to bring to your attention to a collection of articles that grapple with the complexities of the lead-up to 30 June and what it means for the future of Egypt.
Context, Dynamics, and Significance of 30 June Protests
Obsessed with Turkish Models in Egypt, by Hesham Sallam (published in partnership with Mada Masr)
Tamarod: Egypt's Revolution Hones its Skills, by Adel Iskandar
Gender and the People in Revolutionary Times, by Sherene Seikaly
June to June: The More Things Change, The More They Remain The Same, by Robert Springborg
Egypt’s Ultras: No More Politics, by Mohamed Elgohari
Intimidation and Resistance: Imagining Gender in Cairene Graffiti, by Mona Abaza
What Happens on 30 June? The Silver Lining, by Wael Eskandar
Between Inaction and Complicity: The Shi‘a and the Brotherhood, by Sherene Seikaly and Adel Iskandar
Back to the Margins, by Lina Attalah (published in partnership with Mada Masr)
Nostalgia, Hope, and Fear on the Path to 30 June, by Mona Atia
Should Egyptians Believe Morsi? by Heba F. El-Shazli
Unpacking Anti-Muslim Brotherhood Discourse, by Mohamad Elmasry
الديمقراطية التشاركية والثورات العربية
!بحثّاً عن حلف تاريخي جديد
حديثي مع الشيطان - الجزء الثاني
حديثي مع الشيطان
For more on Egypt, visit our Egypt Page by clicking here.
Martti Koskenniemi, admittedly, is not a household name. His work, however, touches upon our daily lived experiences. Koskenniemi is a giant among contemporary and historical legal scholars whose manuscripts, articles, and interventions draw upon history, international relations, and politics making them unique contributions to the field of international law and liberal intellectual thought. It is therefore a special treat not only to meet Koskenniemi but to watch him engage with legal scholars who are each engaging with his rich body of work.
Last week, I enjoyed that unique privilege at Temple Law School, where Professor Jeff Dunoff, a stellar scholar and generous friend, organized a two-day Workshop entitled, Engaging the Writings of Martti Koskeniemmi. The program reflected the breadth of Koskenniemi's intellectual prowess and was divided into six panels: Using International Law in Times of Crisis; On Formalism in International Law: Reconsidering Fragmentation in International Law; Writing International Law: Questions of Cross- And Inter-Disciplnarity; Reflections on the Theory and Practice of International Law; and International Law, History, And Progress. Workshop participants drafted papers that challenged, built and reflected upon Koskenniemi's work. They delivered them in private to a company of their peers all the while striving to avoid speaking directly to Koskenniemmi who sat, without fanfare, on one of the edges of the square-shaped seating arrangement. Koskenniemi did participate in the discussions that followed the presentations and provided new insight into his ever-evolving thinking and approaches underpinning the dynamism of legal thought generally.
The highlight for me, and perhaps for the rest of the participants, was his opening keynote address, wherein he discussed his ongoing seven-year book project on the history of legal thought. The lecture, Histories of International Law - Significance and Problems for a Critical View, lasted for what felt like only minutes and left me convinced that I should not write another word until I spent the next five years immersed in a disciplined reading practice. Below I include my notes from his momentous lecture.
Koskenniemi began by explaining that each day he reads the newspaper, he thinks to himself that nothing interesting has happened since the French Revolution; at least nothing that has fundamentally changed the course of history and international law. There was a moment for such a shift in the nineties, when the atrocities in Rwanda and Yugoslavia prompted the creation of international criminal tribunals and hinted that international law would never be the same. However, since then, and especially since 2001, there has been a backlash that stunted that nascent development. Evaluating where we are today without the benefit of history would accept the "naturalness" of our present-day institutions, but they are not natural at all. To discuss that history, Koskenniemi divided his talk into three parts: the first part would look at the shoulders of giants in legal thought; the second would interrogate the Eurocentrism of legal thought; and the third would look beyond contextualism to ask then what?
He begins by insisting that the history of legal thought reflects a teleological tradition. That teleology was first captured in religion and then by Hugo Grotius in international law, later by Immanual Kant as a set of principles and theories extrapolated from international law, and today in the form of the UN Security Council and other institutions that embody international law. In contrast, the Realist Tradition, using William Grave as a reference, contends that international law emanates from an imperial center to an imperial periphery. At the heart of that imperial activity is war and diplomacy. Legal history is therefore a history of empire. Taken simply, however, this would discount the fact that the center of empire is divided against itself as history demonstrates that the imperial periphery has used empire's law to challenge its core. To assume that international law's history is one of imperial domination and control is as reductionist as assuming that its history is an idealistic one about the pursuit of freedom, dignity, and justice.
Koskenniemi then moves on to highlight the Eurocentrism of international law which complicates this sordid history. He explains that one cannot imagine international law without a European imaginary- this includes the Renaissance, Jus Gentium, the earliest concept of sovereignty, and the seeds of international law found in Roman courts and the works of Cicero. Lawyers on the imperial periphery, however, like T.O. Elias of Nigeria and R.P. Anand of India, are also part of international law's development and history. Koskenniemi explains, however, that insofar as they shaped the substance of international law, they did so within its confines thereby asserting that "we are also European." Another approach is to tell the stories of colonial barbarism that spurred an anti-colonial consciousness. Yet another approach is a hybrid one that includes both the imperial center and the periphery's pushback that created a dialectic of international law.
As a historian of legal thought these approaches present problems because today we view international law as the body that exists in front of us. However, this approach or Presentism, risks skewing history. Koskenniemi continues that it projects our conceptions or present-day readings onto people who were free from those ideas and readings all together. Worse, it influences legal thinkers to willfully ignore what these historical figures were trying to say at the time they were saying it. Hugo Grotius is a great example in this regard- he served as a legal adviser to the Dutch East Indies Company and he considers his greatest contribution to be the unification of churches and yet, international lawyers, in particular, regard him as the forefather of international law. Despite the risks posed by such historical readings, we continue to place all sorts of diverse writers into a single tradition that we can then step into ourselves.
So where does that leave historians who want to write about the history of international law? Koskenniemi suggests that writers should be concerned with scope and scale. This involves choosing where to begin and what scope of it to examine. In his own forthcoming book on the history of legal thought, Koskenniemi will begin with a discussion of St. Augustine and an examination of international trade. While sovereignty and trade are two aspects of the history of international law, there has been an undue attention given to soveriegnty. However, he explains, "I look at the Netherlands in the sixteenth century and I see a company," sovereignty is indeed relevant but only later in the game.
Additionally, a constant challenge will be how to accurately describe historical figures of legal thought. Take Vittoria for example: was he a counter-reformationist or was he a teacher? Tony Anghie has been accused of presentism in his writings on Vittoria for imposing a particular context upon him. However, Koskenniemi counters that there is no absolutely right context- the content of our writings reflects what is most relevant to our own chosen scope and scale. It is similar to looking at this perennial image that challenges the objectivity of our perspective:
Is it really a duck or a rabbit? Does it matter?
Koskenniemi continues that as legal historians, we are writing a history of the present; the writing practice itself reflects a desire to intervene in the present. Despite his desire to make such an intervention, Koskenniemi then ends on an anti-climactic note and explains, "The world is a disaster and I have nothing to offer to help you figure it out. My work is that of a detective...to say who dunnit?" Perhaps he is right, but it is doubtful that future generations of international lawyers, historians, and writers will look so plainly upon Koskenniemi's work. Surely, their own presentism will shape him into something more than a detective and, instead, as a culprit of spurring radical approaches to the study and practice of international law.
On April 6 and 7, 2013, activists, scholars, and community members will converge at Boston University to participate in the Right of Return Conference at Boston University. The last Right of Return Conference took place in Boston more than a decade ago and featured the late Edward Said as its keynote speaker. This Conference is especially critical at this juncture as the Oslo Peace Accords turns twenty and in the direct aftermath of President Barack Obama's first visit to Israel and the Occupied Palestinian Territory in his two-year term.
The Oslo Accords sought to establish two ethno-nationally homogenous states as a remedy to Israel's settler-colonial regime. Not only did the Plan fail to deal with the root cause of conflict in the region but it also failed to thwart the ongoing forced displacement of Palestinians both within Israel Proper as well as the Occupied Palestinian Territory. In the shadow of the Peace Process, for example, Israel has accelerated its Judaization campaign of East Jerusalem, where it administratively revoked the residency rights of 4,800 Palestinian Jerusalemites in 2008 alone.
Oslo excluded refugees from its consideration all together when it relegated the fate of 6.6 million Palestinian refugees to final status negotiations which remain elusive. Since then Israeli officials, like Avi Dichter have made clear that the return of refugees is a red line in any negotiated solution. In response to a PA officials mention of refugees in 2011, Dichter declared “The 'right of return' will not be included in the peace process... Talk about the 'right of return' is meaningless. Everyone understands that there will not be a solution that includes 'return,' no matter who says what.”
The right to return, however, is not a political matter, it is a humanitarian one governed by international law and precedent. Those precedents include the return of, restitution to, and compensation of refugees to East Timor, Bosnia, and South Africa. Those laws include:
This speaks volumes to the vision of Conference's organizers who have remained on course despite significant political pressure. In an article published today on Mondoweiss, two of these organizers, Zena Ozeir and Jamil Sbitan explain:
As aptly argued by Edward Said 13 years ago, this failure on the part of official channels precipitates the urgency that these matters be taken into the hands of non-governmental actors through independent planning and organizing. This is the framework from which the current upcoming Right of Return Conference at Boston University emerges; from an impetus to plan rather than debate the realization of the Palestinian Right of Return. Through examining the legal, cultural, discursive and spatial dynamics of a political order that facilitates this Right, this conference asserts the applicability of this goal, thus countering those who voice its supposed inapplicability.
Check out the full conference schedule below. Better yet come through this weekend or join an effort to make real the return of Palestinian refugees. During my allotted time, I will be sharing some of the findings of Badil's comparative study tours that it has conducted in furtherance of that effort.
Saturday, April 6th 9:00
9:15 PANEL: “Discourses of Return and Resistance Among Palestinian Refugees”
Moderator: Sa’ed Atshan
Charlotte Kates & Khaled Barakat: Return and Liberation, Liberation and Return: The Palestinian National Movement and the Implementation of Return
Ziad Abbas: Palestinian Refugee Youth and the Legacy of Right of Return
Sarah Marusek: Palestinian Refugees in Lebanon: Somewhere in between Rights and Resistance
11:00 PANEL: “Identities on Display: Collective Identity and Daily Practice”
Moderator: Amahl Bishara
Joseph Greene: The Palestine Archaeological Museum: Disentangling Cultural Heritage “After the Return”
Riccardo Bocco: Collective Memory and Dreams of Return: A Journey through Documentary Films Portraying Palestinian Refugees
12:30 LUNCH BREAK
1:30 Keynote Speech: Dr. Salman Abu-Sitta
2:30 PANEL: “Paradigmatic Shifts: Jewish Identity, Theology, and Liberation Post-Return”
Moderator: Eve Spangler
Bekah Wolf: Re-Visiting Self-Determination
Cory Faragon: Meusharot, Knafonomics and the Right of Return
Yakir Englander: “Choose Life”: The Imperative of a New Jewish Theology of Return
4:30 PANEL: “Deconstructing Colonial Narratives: Navigating Space, Peoplehood, and Origins”
Moderator: Heike Schotten
Alborz Koosha & Lila Sharif: Land and Peoplehood(s): Countering Zionist Settler Origin Stories for a Post-Return Palestine
Linda Khalil & Sarona Bedwan: Negotiating Space: Deconstructing Palestinian Identities & Illuminating Ways of Being
6:00 CLOSING REMARKS
Sunday, April 7th
9:00 OPENING REMARKS
9:15 PANEL: “Disappearing and Reappearing: Refugees Between NGOS, Legal Status, and Return”
Moderator: Susan Akram
Anne Irfan: Handing Back the Keys: UNRWA and the Right of Return
Jinan Bastaki: Disappearing Refugees and the Legal Gaps: The Implications of Third Country Citizenship for Palestinian Refugees and the Right of Return
10:45 PANEL: “Imagining Spaces of Return & Mapping Palestinian Liberation”
Moderator: Salim Tamari
Linda Quiquivix: Liberation or Independence: Palestine as Land or Palestine as Territory?
Einat Manoff: Counter-mapping and the Geographical Imagination: Mapping Spatial Scenarios of Return
Thomas Abowd: The Return of Homes and the Restitution of History in Jerusalem
12:45 LUNCH BREAK
1:45 Keynote Speeches: Noura Erakat (Badil) & Liat Rosenberg (Zochrot)
3:30 PANEL: “Rehabilitating the Body Politic: Palestinian Politics and Models for Return”
Moderator: Leila Farsakh
Sadia Ahsanuddin: Restitution in the Land of Milk and Honey: Implementing the Palestinian Right of Return via Israeli-Palestinian Federalism
Sarah I.: Who Is A Palestinian? Political Representation of the Shatat in the Homeland
5:00 Keynote Speech: Dr. Joseph Massad
6:00 CLOSING REMARKS